Wednesday, August 08, 2007

Joined at the hip

Already to close for the comfort of many, the "partnership" between the European Union and the United Nations is about to get considerably closer if the new constitution reform treaty comes into force.

This is through – again – a series of apparently unrelated amendments to the treaty which, used together, will allow the EU independently to make agreements with the UN which will then become legally binding on the member states.

The closeness between the EU and UN was reaffirmed as recently as March when the UN deputy secretary general gave a speech to the EU parliament in Strasbourg. He then acknowledged that the EU was "one of the great supporters of the United Nations and a believer in the strength of multilateralism", declaring that "the European Union and its institutions are superb partners of the United Nations".

The "closer union" is facilitated by the the new treaty, which gives a legal personality to the EU. This allows the Union specifically (Point 42) to conclude formal agreements with the bodies such as United Nations.

These agreements, within the framework of the new treaty, must normally be approved unanimously by the European Council and the Foreign Affairs Council acting unanimously (Point 34), the latter chaired by the "High Representative of the Union for Foreign Affairs and Security Policy", who will also be responsible for relations between the EU and the UN.

Although the requirement for unanimity would normally prevent any member state being forced into accepting an agreement – which would be negotiated by the High Representative – further changes to the treaty will make refusal very difficult indeed, and possibly open to legal challenge in the European Court of Justice.

The first of these changes comes in the new statement of the Union's objectives (Article 3), which require the Union to "contribute to … the strict observance and the development of international law, including respect for the principles of the United Nations Charter."

Secondly, the European Council and the Council will be bound by the treaty to advance the Union's objectives and serve its interests (Article 9) and, thirdly, the Member States are required under a new amendment to Article 4 to "facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives."

These three provisions taken together with the new statement of objectives, effectively puts support of the United Nations on a mandatory basis. They place a treaty obligation on member states and their representatives to approve any agreements made by the EU with the UN, if they are couched in terms of advancing the Union's objectives and serving its interests.

Effectively, by virtue of Article 4, member states could even be in breach of the treaty if their representatives exercised their rights, under the unanimity provisions, to veto an agreement, this Article specifically prohibiting member states from taking any measures "which could jeopardise the attainment of the Union's objectives".

This is an anomalous situation with two parts of the treaty contradicting each other but, unless Article 4 and the other provisions really are merely words on paper, then they pave the way for enormous pressure to be directed at any dissident member states to conform.

Clearly, though, the long-term survival of this inherent contradiction is unsustainable. Fortunately for the "colleagues" though, there is a mechanism in the treaty to resolve it, the so-called "passerelle" or "ratchet" clause.

This will allow the unanimity requirement to be removed, the case for which will be unarguable as the use of a veto quite obviously contravenes the Union's objectives and its desire to strengthen its partnership with the United Nations. Then, both de facto and de jure, the EU and the UN will be joined at the hip.

This will lock us more solidly into the "multilateral" paradigm, limiting still further our ability to act unilaterally on foreign policy issues. That may have some considerable implications for our relations with the US and future attempts to work with them on issues outside the ambit of the UN.